CITATION: Charlebois v. SSQ, Life Insurance Company Inc., 2015 ONSC 2568
COURT FILE NO.: CV-11-5154
DATE: 2015/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Renée Charlebois
Geoffrey Larmer, for the Plaintiff/Responding Party
Plaintiff (Responding Party)
- and -
SSQ, Life Insurance Company Inc.
Christine G. Carter, for the Defendant/Moving Party
Defendant (Moving Party)
HEARD: In writing
ellies j.
REASONS FOR DECISION ON MOTION FOR LEAVE TO APPEAL
[1] SSQ, Life Insurance Company Inc. seeks leave under rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, to appeal the decision of Valin J. in which he dismissed SSQ’s request that Larmer Stickland P.C. be removed as counsel for Ms. Charlebois: see Charlebois v. SSQ, Life Insurance Company Inc., 2015 ONSC 304.
[2] SSQ’s removal motion arose in the context of an action in which Ms. Charlebois sued SSQ for improperly terminating her benefits under a disability insurance policy. The motion was brought by SSQ after it learned that Ms. Charlebois’ lawyer, Geoffrey Larmer, had retained two experts to provide opinions for litigation purposes, both of whom SSQ had previously retained to advise it with respect to Ms. Charlebois’ claim for benefits.
[3] In the motion, SSQ contended that the two experts, an occupational therapist and a psychologist, were privy to confidential and litigation privileged information that they had received from SSQ. SSQ argued that the court ought to grant the relief it sought as part of the court’s inherent supervisory jurisdiction to prevent unfairness in the conduct of matters before it.
[4] The motion judge found that neither the experts nor Mr. Larmer had received any lawyer-client or litigation privileged information. He also held that no duty had been breached by Mr. Larmer in the course of retaining the experts. In the result, the motion judge dismissed SSQ’s motion. He held that SSQ was free to speak to both experts, with certain restrictions.
[5] In this motion for leave, SSQ submits that there are decisions which conflict with that of the motion judge, that there is good reason to doubt the correctness of his order, and that the matter is of such importance that leave to appeal should be granted.
[6] I disagree. There is no conflict between the cases relied upon by SSQ and the motion judge’s decision. Nor is there any reason to doubt the correctness of the decision in this case. Given my view on these two aspects of the motion for leave, there is no need to consider the importance of the matter.
BACKGROUND
[7] Ms. Charlebois was injured in 2006 when some door hardware fell onto her left hand and wrist while she was visiting a patient at a hospital. In 2007, she retained Mr. Larmer to represent her in connection with the injuries she sustained in that accident. Mr. Larmer commenced an action on behalf of Ms. Charlebois against those parties believed responsible for her injuries.
[8] At the time she was injured, Ms. Charlebois was insured through a group insurance policy placed with SSQ by her employer. In addition to pursuing a tort claim, Ms. Charlebois made a claim for disability benefits under the SSQ policy.
[9] The policy required Ms. Charlebois to participate in a rehabilitation program, which included assessment, counselling, and medical or psychological treatment. In January 2010, Nikki Mancoo, the adjuster at SSQ handling Ms. Charlebois’ claim, retained Salus Cura, a rehabilitation service provider, to assist Ms. Charlebois with respect to her rehabilitation needs.
[10] In March 2010, Sylvie Leblanc, an occupational therapist and disability management consultant employed by Salus Cura, referred Ms. Charlebois to Dr. Jeffrey Phillips for a psychological assessment. In her referral letter to Dr. Phillips, Ms. Leblanc wrote that the purpose of the referral was “to determine [Ms. Charlebois’] treatment needs”.
[11] Dr. Phillips assessed Ms. Charlebois and prepared a report dated April 9, 2010, in which he recommended cognitive-behavioural psychotherapy. There is conflicting evidence as to whether Ms. Charlebois received that treatment. According to a report that Ms. Leblanc prepared in closing her file, Ms. Charlebois subsequently underwent treatment with Dr. Phillips, who sent progress reports directly to SSQ. However, an attachment to an affidavit that Mr. Larmer swore in opposition to the motion indicates that SSQ decided to explore another treatment option instead, to which reference is made below.
[12] It is worth noting that copies of both Ms. Leblanc’s referral letter and Dr. Phillips’ report were provided to Mr. Larmer in response to a request he made in connection with the tort action on April 19, 2010.
[13] In June 2010, Ms. Leblanc referred Ms. Charlebois to a rehabilitation program known as the “Progressive Goal Attainment Program” (“PGAP”). Ms. Charlebois subsequently met with Debra Hilborn, an occupational therapist, to determine Ms. Charlebois’ suitability for the program. In a report dated July 5, 2010, to Ms. Leblanc, Ms. Hilborn indicated that Ms. Charlebois was a good candidate. Ms. Charlebois then began the program and participated in a total of six sessions before SSQ discontinued paying for the program in September 2010. Thereafter, SSQ paid for additional occupational therapy treatments with Ms. Hilborn in connection with an “electrotherapeutic point simulation machine”. This funding was discontinued in October 2010.
[14] SSQ stopped paying Ms. Leblanc’s benefits under the policy on November 30, 2010.
[15] In February 2011, Ms. Charlebois retained Mr. Larmer to act for her in connection with her claim for benefits under the SSQ policy. The present action against SSQ was commenced on April 14, 2011.
[16] It would appear from the affidavit of Mr. Larmer that copies of the reports sent to SSQ by Ms. Hilborn were produced to Mr. Larmer in the action against SSQ and, like the documents relating to Dr. Phillips’ involvement provided earlier, were not made the subject of any claim for privilege.
[17] Notwithstanding their previous involvement on behalf of SSQ, in February and March 2011, Mr. Larmer retained Ms. Hilborn and Dr. Phillips, respectively, to prepare reports. Based on the contents of the letters he wrote to both experts, it appears that they were retained by Mr. Larmer in connection with both the tort action and the action against SSQ. Mr. Larmer requested that each expert provide an opinion on the effect of Ms. Charlebois’ injuries and on whether Ms. Charlebois would be able to participate in gainful employment in the future, among other things. In the case of Ms. Hilborn, Mr. Larmer also requested that she provide information regarding her previous involvement with Ms. Charlebois.
[18] In accordance with Mr. Larmer’s request, both experts prepared reports, which Mr. Larmer served on SSQ in connection with the present litigation. SSQ objected to the use of the experts by Mr. Larmer, who refused to remove himself as counsel. The removal motion was the result.
[19] The motion judge held that the plaintiff had a health care professional-patient relationship with each expert from the time she first met them (para. 48). He found that neither Dr. Phillips nor Ms. Hilborn had received any lawyer-client or litigation privileged information (para. 49).
[20] Although he recognized that he was not obliged to go further in his analysis, the motion judge proceeded to consider whether Mr. Larmer had received any confidential information (para. 50). He found that he had not (para. 65).
[21] SSQ had also argued that Mr. Larmer was under a duty to advise the experts that they would have conflicting duties if they accepted his request for reports and that they might face disciplinary proceedings as a result. The motion judge rejected this argument (para. 68).
[22] After reaching the conclusions set out above, the motion judge addressed SSQ’s concern that, by virtue of the fact that the experts had now been retained by Mr. Larmer, SSQ’s counsel was no longer able to speak with them to review their anticipated testimony. He held that SSQ’s counsel was free to meet with either expert prior to trial. The motion judge wrote, at para. 73:
Given those circumstances, and mindful of the principle that there is no property in a witness, I agree that counsel for the defendant should not be precluded from meeting with either or both of Dr. Phillips and Ms. Hilborn prior to trial.
[23] However, the motion judge imposed two restrictions. First, he ordered that neither expert could be questioned with respect to any privileged material that expert may have received from Mr. Larmer. Second, he ordered that defence counsel not invite either witness to disclose any opinion that they may have given to Mr. Larmer.
ISSUES
[24] Interlocutory orders of the type at issue in this motion may only be appealed with leave: Courts of Justice Act, R.S.O. 1990. c. C.43, s. 19(1)(b). Rule 62.02(4) provides that leave to appeal may be granted where:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[25] SSQ contends that both of these grounds are made out in this case. In its Notice of Motion for Leave to Appeal, SSQ raises four legal issues, paraphrased, in part, as follows:
(1) Did the motion judge err in law in failing to differentiate between a fact witness and an expert witness when he held that there is no property in a witness and that a party can retain an expert already retained by another party to provide an opinion?
(2) Did the motion judge err in law by reversing the onus and imposing on the moving party the onus to prove that privileged information and/or confidential information had been imparted “to and/or by” the experts?
(3) Did the motion judge err in law by holding that counsel for the plaintiff was not required to advise the experts that they may be placing themselves in a conflict of interest and could be found guilty of professional misconduct by providing opinion evidence for an opposing party in the same proceeding?
(4) Did the motion judge err in law by “confirming that the defendant can no longer have unfettered access to its own witnesses prior to trial”?
[26] In addition to these issues, in Part IV of its factum, SSQ raises two factual issues:
(5) Was the motion judge wrong to conclude that a medical professional-patient relationship had been established between the experts and Ms. Charlebois before they were retained by plaintiff’s counsel?
(6) Was the motion judge wrong to conclude that no privileged information had been imparted to the experts?
[27] I will address issues (1) and (2) first. I will then turn to issues (5) and (6), as they are closely related to these legal issues, before I address the remaining issues.
ANALYSIS
The propriety of retaining an expert that has already been retained by another party
[28] This issue is at the heart of SSQ’s application for leave to appeal.
[29] In Part III of its factum, SSQ proposes the following question, together with two related questions, as the issue to put before the Divisional Court, if leave to appeal is granted:
Is it acceptable for plaintiff’s counsel to consult and retain the same expert consultants previously retained by the defendant to provide an opinion in the litigation when the defendant sought and relied upon the opinion evidence of its expert consultants prior to rendering a decision with respect to entitlement [to ongoing disability benefits]?
[30] This question has been answered many times in the jurisprudence: see for example Cousineau v. St. Joseph’s Health Centre (1990), 49 C.P.C. (2d) 306 (Ont. H.C.); Labbee v. Peters (1996), 10 C.P.C. (5th) 312 (Alta. Q.B.); L.R. v. British Columbia, 2002 BCSC 405, 99 B.C.L.R. (3d) 386. Most recently, it was answered by my colleague, Penny J., in Bortnikov v. Rakitova, 2015 ONSC 1163, [2015] O.J. No. 868, a case in which a wife sought to call a valuator who had been retained initially by the husband in a family property dispute. In ruling that it was permissible for the wife to call the witness, Penny J. relied on the summary of the jurisprudence set out in Labbee, as follows, at para. 24:
There are three main guidelines which govern when an expert may be disqualified when called by the opposing party:
(1) there is no property in a witness;
(2) even though a party has retained an expert and communicated privileged information to the expert, the expert can still provide an opinion for an opposing party and may be called as a witness at trial; but
(3) the expert may not be questioned concerning any privileged material he or she received from the opposing solicitor or disclose any opinion given in confidence to the opposing solicitor.
[31] Thus, there is no reason to doubt the correctness of the motion judge’s statement that there is no property in a witness, expert or otherwise. Nor is there anything improper, per se, in plaintiff’s counsel retaining an expert that was previously retained by the defence to provide an opinion with respect to issues arising in litigation between the parties. What is prohibited, however, is the transmission of solicitor-client or litigation privileged information via the expert. Where that occurs, fairness may require the removal of counsel who retained the previously involved expert witness, as it did in the case I will mention next.
The onus of proof
[32] SSQ submits that the motion judge erred in law by requiring SSQ to prove that confidential or privileged information had been imparted “to and/or by” the experts. SSQ argues that, in doing so, the motion judge’s decision conflicts with the decisions in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, and Stewart v. Humber River Regional Hospital, 2009 ONCA 350, 95 O.R. (3d) 161. In my view, in making this submission, SSQ has misunderstood the ratio of these decisions and misinterpreted the decision of the motion judge in this case. There is a substantial difference in who bears the onus of proving that confidential or privileged information has been imparted to an expert as opposed to proving that such information has been imparted by an expert.
[33] MacDonald Estate involved a junior lawyer who had assisted plaintiff’s counsel in the action, but then joined the law firm representing the defendant. Celanese involved lawyers who, in the course of representing the plaintiff in an action, had come into possession of privileged documents as the result of the execution of an Anton Piller order. In both cases, the Supreme Court of Canada ordered that the law firms in question could no longer continue to act. However, both cases involved lawyers, not expert witnesses. In those circumstances, the Supreme Court saw fit to rely on a rebuttable presumption that the lawyers had come into possession of privileged or confidential information. However, as Penny J. observed in Bortnikov, at para. 21:
While an expert may owe a duty to a client who retains him in certain circumstances, the principles in McDonald Estate and related conflicts cases must be applied cautiously in contexts other than solicitor client privilege. The role of an expert witness who does not participate in litigation planning or strategy does not lend itself to the type of analysis applied to the role of the solicitor, Rumley v. British Columbia, 2002 BCSC 405, [2002] B.C.J. No. 565 (S.C.).
[34] Stewart involved an expert witness, not a lawyer. In Stewart, a nurse employed by the defendant hospital had been designated by the hospital to be its representative witness in discoveries relating to two medical malpractice actions. As the hospital’s representative, the nurse met on a number of occasions with counsel for the hospital, during which the discussions included defence strategies. After being examined for discovery in one of the actions, the nurse left the employ of the hospital. She was later retained by counsel for the plaintiffs and provided an opinion in the other action with respect to whether the standard of nursing care had been met.
[35] The hospital sought an order removing plaintiffs’ counsel. The motion was granted and was upheld on appeal to the Divisional Court. An appeal to the Court of Appeal was dismissed. Writing on behalf of the Court of Appeal, Goudge J.A. held that the question of whether plaintiff’s counsel should be removed ought to be guided by the principles set out in MacDonald Estate and Celanese. However, rather than rely on a rebuttable presumption that the nurse had come into possession of privileged or confidential information, Goudge J.A. agreed with the approach adopted by the motion judge and held that the initial onus was on the party alleging the receipt of such information by the expert to prove that fact (para. 26). He held that, if that onus is met, the onus then shifts to the party who later retained the expert to rebut an inference that such confidential or privileged information was imparted to counsel representing that party. With respect to this shifted onus, Goudge J.A. wrote, at para. 34:
In my view, it is appropriate to apply the MacDonald Estate approach to assess whether, when an expert has received solicitor-client information from one party and then is retained by opposing counsel, opposing counsel has acquired that information. The court should infer that confidential information was imparted unless opposing counsel satisfies the court that no such information passed. The court must ask itself whether the reasonably informed member of the public would be so satisfied. This will be a heavy burden for opposing counsel to discharge. [Emphasis added.]
[36] Goudge J.A. held that four questions had to be answered in the case before the court, at para. 26:
Have the [moving parties] shown that [the expert] received confidential information attributable to the solicitor-client relationship between the [moving parties] and their counsel, and is this information relevant to these two actions?
Has counsel for the [responding party] received the confidential information?
Is there a risk that the confidential information will be used to the prejudice of the [moving parties]?
Is removal from the record the appropriate remedy?
[37] In the present case, the motion judge, relying on Stewart, set out the questions to be answered as follows, at para. 34:
(1) Has the proposed witness received relevant confidential information?
(2) Has counsel received the confidential information?
(3) Is there a risk that the confidential information will be used to the prejudice of the defendant?
(4) Is removal from the record the appropriate remedy?
[38] In proceeding as he did, the motion judge did precisely what the court of appeal in Stewart held he should do. First, he examined the evidence to determine whether SSQ had proven that the experts were in possession of confidential or privileged information. Having found that SSQ had failed to do so, the motion judge quite rightly held that he was not required to go any further (para. 51). However, he did so in the event that his finding with respect to the first question was found to be incorrect. In answering the second question posed in Stewart, the motion judge also quite properly placed the onus on Mr. Larmer to satisfy the court that he had not received confidential or privileged information. After reviewing the evidence on this issue, the motion judge wrote, at para. 65:
In the circumstances of this case, I find that Mr. Larmer has discharged his obligation of proving that, even if lawyer-client or litigation privileged information was imparted by the defendant or any of its representatives to either of Dr. Phillips or Ms. Hilborn, neither of those health care professionals passed on any of that knowledge or information to Mr. Larmer, and neither of them relied on any such knowledge of information in the reports they delivered to Mr. Larmer in April 2011.
[39] There is no reason to doubt the correctness of the motion judge’s approach. Nor is that approach in conflict with any decision. SSQ fails to appreciate that it had the initial onus of proving that the experts had received privileged or confidential information, an onus which it failed to meet, as I will now explain.
The motion judge’s finding that there was a health care professional-patient relationship
[40] After setting out the questions set out above, the motion judge held that, in order to answer the first question, the nature of the relationship between SSQ and the experts should first be determined (para. 35). He then proceeded to review the evidence he had before him relating to that issue. He referred to the provision in the disability insurance policy requiring Ms. Charlebois to participate in an SSQ-supervised rehabilitation program. He also referred to evidence that Salus Cura was hired as a rehabilitation consultant and that SSQ retained the two experts to treat Ms. Charlebois. The motion judge also considered documents such as the reports prepared by Ms. Leblanc in which reference was made to rehabilitation planning, assessments and treatment needs.
[41] After reviewing this evidence, the motion judge concluded, at para. 48:
The preponderance of evidence establishes that the defendant retained both Dr. Phillips and Ms. Hilborn for the purpose of treatment and rehabilitation. I find that the plaintiff had a health care professional-patient relationship with each of them from the time she first met them. Given the provisions of the LTD policy, the fact that the defendant retained Dr. Phillips and Ms. Hilborn and paid for their services is irrelevant to the determination of the nature of the relationship formed between the plaintiff and each of them.
[42] SSQ argues that, in coming to the conclusion that there was a health care professional-patient relationship between the experts and Ms. Charlebois, the motion judge improperly relied upon the decision of the Saskatchewan Court of Queen’s Bench in Parslow v. Masters (1993), 1993 9105 (SK QB), 110 Sask. R. 253 (Q.B.). It submits that Parslow, and now this case, conflict with the decision of the Supreme Court of British Columbia in Mund v. Sovio, 2010 BCSC 252, 82 C.C.L.I. (4th) 246.
[43] I find no reason to doubt the correctness of the approach the motion judge took in first determining the nature of the relationship between the experts and Ms. Charlebois. The nature of the relationship between them was relevant with respect to the issue of whether lawyer-client or litigation privileged information was imparted by SSQ to either expert. Indeed, this is obvious from the way in which Goudge J.A. worded the first question in Stewart, at para. 26:
Have the [moving parties] shown that [the nurse] received confidential information attributable to the solicitor-client relationship between the [moving parties] and their counsel, and is this information relevant to these two actions? [Emphasis added.]
[44] I am also not persuaded that the motion judge’s conclusion conflicts with any other decision. I can find no indication that the motion judge relied on Parslow and, even if he did, Mund is easily distinguishable from this case.
[45] The facts in Parslow were similar to those in this case. Parslow was insured under a group policy pursuant to which she applied for and began receiving disability benefits. The policy provided the insurer with the right to have the insured examined medically, which right the insurer exercised by sending Parslow to Masters. Parslow requested a copy of the report prepared by Masters for the insurer. Parslow’s request was denied. The issue before the court was whether she was entitled to a copy.
[46] Relying on the Supreme Court of Canada’s decision in McInerney v. MacDonald, [1992] 2 S.C.R. 138, Hunter J. found that a physician-patient relationship had been created between Parslow and Masters, notwithstanding the fact that Parslow was compelled to attend upon Masters and that her attendance was paid for by her insurer. He therefore held that she was entitled to a copy of the report.
[47] There is no indication that the motion judge in this case relied on Parslow, other than the fact that it was cited and provided to him by counsel for Mr. Larmer. The motion judge does not refer explicitly in his decision to Parslow and SSQ does not refer in its written materials to any portion of the motion judge’s decision from which it could be inferred that he relied upon Parslow. Indeed, the motion judge uses language from which the opposite could be inferred.
[48] In Parslow the insured had been sent by the insurer to Masters for what Hunter J. called an “independent medical examination”. In this case, however, the motion judge held, at para. 46:
There is no evidence in this case that suggests the defendant or its rehabilitation consultant Salus Cur hired either of Dr. Phillips or Ms. Hilborn to conduct an independent medical examination.
[49] It is hard to see how the motion judge could have relied on Parslow to reach a similar result, given the distinction he made between the two cases.
[50] Even if he did, this case does not conflict with the decision in Mund. In Mund, the plaintiff was injured in a motor vehicle accident. Pursuant to regulations governing auto insurance in British Columbia, Mund was required by his insurer to attend a medical examination by Sovio in connection with the payment of medical, rehabilitation and other benefits. He later sued Sovio on the basis that Sovio had prepared a biased, inflammatory and false report. Sovio sought to have Mund’s claim struck as disclosing no reasonable cause of action.
[51] Hyslop J. found that the facts in Parslow were indistinguishable from those in the case before her. However, she distinguished the cases on which Parslow had been based and preferred, instead, the reasoning in the British Columbia Court of Appeal decision of Wong (Guardian ad litem of) v. Wong, 2006 BCCA 540, 61 B.C.L.R. (4th) 280. Based on that decision, Hyslop J. held that no physician-patient relationship had been created. Mund’s claim was struck.
[52] In Mund, however, Sovio’s involvement was limited to providing an opinion only. He was not involved at all in treating Mund. In the present case, as I have indicated, there is evidence that both experts were involved in making treatment recommendations, if not directly involved in providing that treatment. For that reason, Mund is distinguishable from the case at bar.
[53] I turn lastly to SSQ’s submission that there is reason to doubt the factual correctness of the motion judge’s conclusion with respect to this issue.
[54] It must be borne in mind that, in order to successfully challenge the motion judge’s finding of fact on this issue, should leave be granted, SSQ would have to establish that the motion judge committed a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. This high threshold should be reflected in determining whether leave ought to be granted where the moving party seeks to challenge the correctness of a finding of fact: see McKenzie v. Grant, 2008 (Ont. S.C.), at para. 13.
[55] Even if the threshold on appeal was lower, I would not grant leave to appeal on the basis that there is reason to doubt the correctness of the motion judge’s conclusion on this issue. I see no reason to doubt it. Indeed, I agree with it.
The motion judge’s finding that there was no confidential or privileged information imparted to the experts
[56] In its factum, SSQ maintains that “Salus Cura interviewed the plaintiff and did a complete review of the SSQ file, which contained both litigation and solicitor[-]client privileged information” (para. 5). It also contends that there was “an exchange of e-mails between SSQ and Ms. Hilborn concerning file management as well as litigation privileged and solicitor[-]client privileged information” (para. 10). Neither submission is borne out by the evidence.
[57] As the motion judge pointed out, the only affidavit evidence filed by SSQ was that of R. Gail Goodman, a partner in the law firm representing SSQ. At para. 7 of her affidavit, Ms. Goodman deposed:
SSQ retained a disability management consultant, Salus Cura, as an expert rehabilitation consultant, to assist with the rehabilitation process leading up to the change of definition [pertaining to disability]. Salus Cura interviewed the plaintiff and did a complete review of the [SSQ] file …
[58] There is no indication in this paragraph that the SSQ file contained privileged information.
[59] In para. 13 of her affidavit, in referring to Ms. Hilborn’s work with the plaintiff in connection with the PGAP, Ms. Goodman deposed:
Again at that time, there is an exchange of e-mails between SSQ and Ms. Hilborn concerning file management and litigation privileged information. [Emphasis added.]
[60] I am unable to find any earlier reference in Ms. Goodman’s affidavit to the exchange of “litigation privileged” information with Ms. Hilborn, or anyone else. The closest I can find is a reference that Salus Cura provided Dr. Phillips with “details of diagnosis, treatment and injury from SSQ’s files” (para. 8). If this is the information that Ms. Goodman meant to refer in para. 13 when she used the word “again”, then I would disagree that it is litigation privileged.
[61] There are two other references in Ms. Goodman’s affidavit as to the privileged nature of the information provided to the experts. At para. 16, she deposed:
If the matter was to proceed to trial, I believe that SSQ would be left in the position of having to cross-examine Ms. Hilborn and also challenge her qualifications to proffer the opinion she gave plaintiff’s counsel with the benefit of litigation privileged information obtained from the party which initially retained her. [Emphasis added.]
[62] With respect to Dr. Phillips, Ms. Goodman deposed, at para. 17:
Again, Dr. Phillips relied upon information which he had gained through his retainer by the defendant, including litigation privileged information, to provide an opinion. [Emphasis added.]
[63] If Ms. Goodman was referring in these paragraphs to information other than information about the plaintiff’s injuries, diagnosis and treatment, the motion judge was not obliged to accept Ms. Goodman’s conclusion that it was litigation privileged. It was his task to make that determination. It was SSQ’s obligation to provide evidence from which he could reach that conclusion. It failed in that obligation.
[64] Ms. Goodman’s evidence was not only conclusory, it was hearsay. She had no dealings with either expert. As the motion judge held, there was no direct evidence to support the conclusions of Ms. Goodman. There was no evidence from either Ms. Mancoo or Ms. Leblanc. Neither the attachments to Ms. Goodman’s affidavit, nor the evidence set out in her affidavit concerning the circumstances in which these experts were retained supported her statements. With respect to the attachments, a few examples will suffice.
[65] Attached at tab “F” to Ms. Goodman’s affidavit is a fax cover page from Salus Cura to Nikki Mancoo regarding Ms. Charlebois’ referral to the PGAP. The document to which it pertains is entitled “Referral Information”. It contains nothing but contact information about Ms. Charlebois, her employer and Ms. Leblanc and a summary of the problems for which Ms. Charlebois was being referred, listed as “Complex regional pain syndrome, chronic fatigue, depression”. None of this is litigation privileged or confidential information vis-à-vis the plaintiff.
[66] Attached at tab “G” to Ms. Goodman’s affidavit are copies of the three reports which Ms. Hilborn prepared for SSQ regarding the PGAP. There is nothing in those reports that indicates that Ms. Hilborn was privy to any privileged information. The same is true of the report of Dr. Phillips, dated April 9, 2010, a copy of which is attached at tab “D” to Ms. Goodman’s affidavit.
[67] With respect to the circumstances surrounding the retention of the experts, as the motion judge found, there was no evidence that litigation was being contemplated at the time that Ms. Hilborn and Dr. Phillips were retained (para. 64). As he also observed, had SSQ been contemplating litigation with Ms. Charlebois at the time that it referred her to the experts for what purported to be rehabilitation-related reports, SSQ might well have been breaching its duty to deal with Ms. Charlebois in good faith (para. 62).
[68] Therefore, there is no reason to doubt the correctness of the motion judge’s conclusion with respect to this issue.
The duty of counsel retaining a health professional formerly retained by another party
[69] SSQ argued before the motion judge that the legislation governing the two health care professionals in this case prohibited them from placing themselves in a position of conflict, which they did by agreeing to provide an opinion to Mr. Larmer. SSQ contended further that Mr. Larmer had a duty to advise the two experts before they did.
[70] The motion judge did not agree. After examining s. 36(1)(j) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, dealing with the obligation of health professionals to keep information confidential, he held that Mr. Larmer’s only obligation was to provide the experts with a written authorization from the plaintiff, which he had done (para. 69).
[71] In seeking leave to appeal, SSQ makes the same argument, relying upon the same legislation. However, it has cited no conflicting decision, nor any authority that might call into question the correctness of the motion judge’s decision on this issue.
[72] This is a very different case, for example, than Burgess (Litigation guardian of) v. Wu (2003), 2003 6385 (ON SC), 68 O.R. (3d) 710 (S.C.), a wrongful death case, in which counsel for the defendant retained one of the deceased’s treating physicians to provide an expert opinion for the defence. The facts in the present case are, in essence, the opposite of those in Burgess. Here, the “patient’s” lawyer retained what the motion judge held, correctly in my view, were her own treating health professionals. I agree with the motion judge’s view that the only thing that plaintiff’s counsel was required to do in those circumstances is to provide the health professionals with the plaintiff’s written consent.
[73] I see no merit in this potential ground of appeal.
Limiting a party’s access to an expert later retained by another party
[74] SSQ argues that the motion judge erred by precluding its lawyers from questioning the experts with respect to any privileged material that the expert may have received from Mr. Larmer and any opinion with which Mr. Larmer may have been provided by the expert. It argues that this is especially so because there was no cross-motion seeking this relief.
[75] As with SSQ’s first issue, this issue has been decisively answered against it in the jurisprudence. In making its request that Mr. Larmer be removed, SSQ relied on the court’s inherent jurisdiction to control the fairness of proceedings before it. That jurisdiction permits the court to impose conditions to ensure fairness, just as it permits the court to resort to more drastic measures, such as the removal of counsel: see Celanese, at para. 56.
[76] Courts before which motions such as this have been brought have routinely imposed conditions on the continued involvement of experts previously retained by opposing parties. In some cases, the restrictions have been imposed only on the witness. In others, they have been imposed on both the witness and the lawyers.
[77] In Labbee, the court ordered that, although the defendants were at liberty to put a set of facts before the expert previously retained by the plaintiff, the expert was not to have regard to any information he had received in confidence from the plaintiff, nor was he to disclose any tactical or strategic advice he had given the plaintiff. In L.R., the court imposed similar restrictions. However, Humphries J. ordered that counsel was not to ask questions concerning the privileged material the expert received from opposing counsel and ordered the expert not to disclose any opinion he provided to opposing counsel. Penny J. made a similar order in Bortnikov.
[78] SSQ submits that the imposition of conditions on the free flow of information between SSQ and the experts conflicts with the decision in Lacroix v. Federation Insurance Co. of Canada, 2014 ONSC 6002, 122 O.R. (3d) 715. I disagree. Lacroix is entirely distinguishable from this case. In Lacroix, the plaintiff had been required to attend upon expert assessors retained by the defendant insurer under the Statutory Accident Benefits Schedule, O. Reg. 34/10. The issue before the court was whether the defendant was required to obtain the plaintiff’s consent to confer with the assessors in preparation for trial. Labrosse J. held that it was not. However, unlike this case, in Lacroix, there was no indication that the assessors ever provided treatment or treatment advice. As Labrosse J. pointed out, there was no risk in Lacroix that the assessors might communicate either confidential doctor-patient information or litigation privileged information (para. 16).
[79] SSQ also contends that the result in the case at bar conflicts with the decision in Westerhof v. Gee Estate, 2013 ONSC 2093, 310 O.A.C. 335 (Div. Ct.), in which the Divisional Court distinguished between fact and opinion evidence given by experts. It held that even treating medical experts who provide opinion evidence were required to complete Form 53 (Acknowledgement of Expert’s Duty) and provide reports under the Rules of Civil Procedure, in compliance with rule 53.03. I disagree with SSQ’s submission for two reasons.
[80] First, the Divisional Court decision in Westerhof has been overturned by the Ontario Court of Appeal, released after SSQ submitted its materials in support of its motion for leave to appeal: see 2015 ONCA 206. The type of evidence – fact or opinion – is no longer the key factor. Instead, compliance with Rule 53 is required only where “litigation experts”, namely those experts retained to provide opinion evidence in relation to a proceeding, give evidence. “Participation witnesses”, such as treating health professionals, and experts retained by non-parties are not required to comply with Rule 53. As the motion judge found, there was no evidence that litigation was contemplated at the time Dr. Phillips and Ms. Hilborn were retained by SSQ. As such, compliance with Rule 53 would be unnecessary.
[81] Second, even if compliance with Rule 53 is necessary, there is no reason why the experts could not complete Form 53. Although they might be required to complete two such forms, one for each party on behalf of whom they give evidence, I cannot see why they could not acknowledge that they have an overriding duty:
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within their area of expertise; and
(c) to provide such additional assistance as the court may reasonably require,
regardless of the party on behalf of whom they are testifying.
[82] Therefore, I see no reason to doubt the correctness of the motion judge’s decision to impose the restrictions he did, nor is there any case that conflicts with that decision.
CONCLUSION
[83] There is no rule prohibiting a party from retaining experts previously retained by an opposing party. However, when this occurs, it creates the perception of unfairness, often giving rise to motions like the one brought by SSQ in this case. It is not difficult to see why. It is natural for a party who has retained an expert to question the fairness of a system that protects confidential and privileged information imparted to the expert, but allows an opposing party to retain that same expert. For this reason, I would not like to be understood as encouraging this practice.
[84] However, in this case, there is no reason to question the fairness of the system, because neither the experts nor Mr. Larmer received confidential or privileged information from SSQ. There is no reason to doubt the correctness of the motion judge’s findings in that regard, nor does the motion judge’s decision conflict with any other applicable authority.
[85] The motion for leave is, therefore, dismissed.
[86] If the parties cannot agree on costs, written submissions, limited to five type-written pages, excluding attachments, may be made as follows:
(a) on the part of plaintiff’s counsel, within 10 days of the release of these reasons,
(b) on the part of the defendant, within 10 days of the receipt of plaintiff’s counsel’s submissions;
(c) any reply, within 10 days after receipt of the defendant’s submissions.
Ellies J.
Released: May 29, 2015
CITATION: Charlebois v. SSQ, Life Insurance Company Inc., 2015 ONSC 2568
COURT FILE NO.: CV-11-5154
DATE: 2015/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Renée Charlebois
Plaintiff (Responding Party)
– and –
SSQ, Life Insurance Company Inc.
Defendant (Moving Party)
REASONS FOR DECISION ON MOTION FOR LEAVE TO APPEAL
Ellies J.
Released: May 29, 2015